Land Grants Under the Manitoba Act

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Excerpts from the story of the settlement of land claims in Manitoba in its early days are familiar to all who have an interest in the history of the Province. Incidents related to the advantage taken by land speculators of the improvidence of the half-breed, to the seriousness of the land-block created by the delay in the allotment of lands in the half-breed reserves, to the conflicting claims in the settlement belt, and to the enigma of the ‘hay privilege' have been related countless times. The emphasis, however, has been upon the parochial scene and it is natural, perhaps, that this should be so, because such a focus of interest evoked the full measure of drama inherent in the situations. To enhance the interest the blunderings, real and imagined, of the federal government, in its attempts to satisfy squatters' claims in the new Province, play no small part in the descriptions. In addition, there is little evidence of hesitation to impute motives in the formation of federal government policies adopted to bring about a settlement. It is my purpose to relate the story with little, if any, reference to such elements which have made the episodes worth the telling.

Shortly after Confederation the Government of Canada embarked on its programme of national economic integration of which the three principal components were; the settlement of the North-West; transcontinental transportation through all-Canadian territory; and industrialization by protective tariffs. Manitoba very early felt the impact of policies devised to implement the programme. The Manitoba lands were the first to be prepared for settlement by the projection of the township survey system; the first to be settled upon under the homestead regulations; and the first to be affected by the railway land reserve policies. These elements of the transcontinental development plan were in the trial and error stage during the years when the Manitoba land claims were demanding attention. Overlaying, conflict and confusion were the results.

The milieu in which these policies were to operate and the temper of the inhabitants who recently had reacted violently to their premature application were to bring each shortcoming into relief and to subject it to criticism born of suspicion and mistrust. On the side of the Dominion Government, the land claims were an obligation to be discharged under the terms of the surrender of Rupert's Land and impediments to the progress of the plans for national development. Furthermore, there seemed to lie behind the programme an impelling sense of urgency, making demands upon the administrative agencies which could not be entirely satisfied. The apparent need to do many things quickly and, what is more, to do them simultaneously, despite conflict and confusion, would account for many of the problems which faced the administrators. The urge to push ahead with western development was shared by the peoples on the frontier who often displayed that quality of critical impatience which characterizes many in the vanguard of progressive movements.

The purpose served by the grant of 1,400,000 acres of land to the families of half-breed residents in Manitoba, according to Section 31 of the Manitoba Act, was the partial extinction of the Indian title to lands in the Province. [1] The grant was, therefore, directly in accord with and pursuant to the terms of the Deed of Surrender of Rupert's Land by the Hudson's Bay Company to the crown. [2] Prime Minister Macdonald, when explaining the legislation to the House of Commons, said that the Government recognized the half-breeds' strong claim in consequence of their extraction as well as from being settlers. [3]

The grant, it has been noted, was made to satisfy a dual claim by right of racial extraction and of squatting. The problem which the grant posed for the Dominion Government was, however, of a nature different from that usually associated with squatters' claims. In this instance the extent of compensation was the known factor, the extent and mode of distribution the unknown factors. It was in the initial resolution of these unknowns that the first mistakes were made.

In August, 1870, Adams Archibald, the Lieutenant-Governor of Manitoba, in his added capacity as Administrator of Crown Lands in Manitoba, was instructed to inquire into the land question (in Manitoba) and to be prepared to suggest a means of regulating both the selection of sufficient land to satisfy the half-breed grant, and the division of this land among the children of the half-breed heads of families. [4] In addition, the instructions issued for his guidance in the government of Manitoba required the Lieutenant-Governor to have taken a census of the half-breed heads of families and of their children respectively. [5] The terms of these instructions, one will note, were in strict accord with the provisions of Section 31 of the Manitoba Act.

Because population statistics were requisite to the establishment of the machinery of government, the most pressing need of the community, the enumeration first occupied the Lieutenant-Governor's attention. A plan was devised which was to serve the dual purpose of providing information relating to the half-breeds and population figures to be used in laying off the districts for representation. Archibald spoke with satisfaction of his plan, [6] but the attempt to combine objectives had a most unsatisfactory result.

The forms completed by enumerators contained the information required for a land grant system, [7] but in the abstracts prepared from these forms the information was obscured because of the system of reduction employed. [8] The only significant figure available for purposes of the half-breed grant was that of 10,000 for the total number of halfbreeds, French and English. Precise information regarding the numbers of half-breed heads of families and of their children respectively was omitted from the reported census figures and this omission and the acceptance, later, of the estimated total as a basis for the half-breed grant system were causes of much of the confusion and delay which attended the system in practice.

In April, 1871, an Order in Council introduced regulations concerning the public lands of Manitoba. The mode of distribution of the half-breed grant was embodied in these regulations and two of its features should be noted here. First, every half-breed resident in Manitoba, on July 15, 1870, and every child of every such resident were declared to be participants in the 1,400,000 acres. Second, it was directed that an accurate census, if not already obtained, should be taken to determine the number of persons eligible to participate in the grant. [9] The two features, whether examined separately or together, give rise to questions which can be answered only by conjecture, if at all. The first feature contravened the terms of Section 31 of the Manitoba Act by declaring, in effect, that all half-breeds, resident in Manitoba at the time of the transfer, were eligible to participate in the grant. Was this new designation of eligible participants framed in error or was the contravention intentional? If an error was made, it is possible to understand why there should be doubt as to the existence of a proper census on which to base the plan of distribution. If the change in designation was intentional, the 1870 census figures, already at hand, were adequate for the purposes of the grant. [10] Other questions obviously are latent in the relationship of these features but they will not be raised; partial answers to those already raised will be indicated below. At this point it is sufficient, perhaps, to say, that the approach to the settlement of the half-breed claims was much disordered.

The problem of whether or not a census was to be taken was not resolved in 1871. In fact, no move was made in that year to put the half-breed grant system into effect because the division and allotment of grant lands depended upon the existence of completed township surveys. The surveys, halted by the troubles of 1869-70, began again in 1871 under a revised system, but prairie fires and the Fenian "raid" delayed their progress. The half-breeds might have been tolerant of such unavoidable delays had there not arisen out of these delays circumstances which they did not choose to tolerate. Settlers were arriving in Manitoba and the Dominion Government found it necessary to allow them to take up homestead entries in advance of the survey. [11] A large number of the settlers took up lands which the half-breeds felt were or would be theirs and, in fact, many of the lands so taken up were enclosed later in the half-breed reserves. Thus there arose a source of grievance for the half-breeds who resented the intrusion upon lands which they regarded as their own, and for the settlers who found themselves situated among an alien and often hostile people. Complications were arising before the grant system got underway.

The Dominion Government returned to the question of a census of the half-breed population of Manitoba in 1872. An Order in Council, passed in January, authorized the Dominion Lands Agent in Manitoba to have taken a census of all those entitled to land under Section 31 of the Manitoba act, but again a conflict in terms marked the grant plans. A qualifying clause designated the eligible participants as the half-breed residents in the province at the time of the transfer. [12] The questions raised by the Order in Council of April, 1871, therefore remain unanswered. The census was not taken, however. The Agent reported the extreme necessity of making an early selection of the half-breed lands in order that a clash of interest might be avoided when settlers began arriving in the spring, and the Government, mindful of the problem created in the previous year, ordered that the selection should begin without further delay.

The basis of selection was laid down in an Order in Council of April 15, 1872. The Lieutenant-Governor was to select a sufficient number of townships to make up the 1,400,000 acres of the grant, taking into account the prior claims on land for the Hudson's Bay Company and for school purposes in each township. The 1870 census figure of 10,000 for the half-breeds entitled to share in the grant was adopted and with its adoption the obscurity of the previous Orders was removed. [13] Whether this course was taken for reasons of expediency or because it coincided with the reading, or misreading, of the terms of the Manitoba Act, it is not possible to say. [14] That the course was ill-advised soon was to become apparent.

The Order also precluded an extension of the problem associated with homestead entries on half-breed claims. The townships selected for the half-breeds were to be reserved for the purposes of the grant exclusively and no further homestead entries were to be allowed. Settlers who found that their lands were situated in half-breed reserves were to be confirmed in their holdings but they might locate a fresh land right elsewhere if they so desired, provided that they applied for such re-entry within two years. Thus a source of future grievance was removed and a means of redress for existing grievances was provided.

The Government expected that the Lieutenant-Governor would implement the instructions at once but he felt that he needed more accurate information regarding the land situation as a whole in Manitoba before he could proceed with a selection. During the early summer settlers were arriving and the question of where they might or might not take up lands was unanswered. The half-breeds, anxious to have their lands reserved for them, were fearful that the pattern of the previous summer would be repeated. In consequence, the mischief growing out of the delay became increasingly serious and Archibald found it necessary to set aside certain townships on a temporary basis in areas where trouble was most likely to occur.

In July, the Government pressed Archibald to get on with the job [15] and by the end of August some 55 townships had been reserved. The plan of distribution he followed had its basis in the calculation of 150 claims of 140 acres per townships; allowance having been made for the four sections reserved for the Hudson's Bay Company and for school lands. On this basis, 68 intact townships would be required but it was found that in many of the townships prior claims had accrued through purchase or settlement and so the distribution was continued as a temporary arrangement. In making his selections the Lieutenant-Governor did not take the initiative, but waited for the parishes to make application and to express their preferences with regard to particular areas of land. The 55 townships selected represented satisfaction of the requirements of 19 of the parishes which had made such application; 5 parishes did not apply. [16]

The division of the reserves into individual allotments was the next problem to be solved and the surveys completed in 1872 marked a sufficient advance in the subdivision of the Province to permit of plans for such a division being made. [17] In November, Alexander Morris, for the moment Administrator of the Province, wrote to Ottawa recommending, in view of the troubled situation arising out of the delay, that he be authorized to announce that such plans had been matured and that the division would be made early in 1873. [18]

In December, Morris, now Lieutenant-Governor, was able to assure a halfbreed delegation that the distribution was soon to be made and that an official was on his way from Ottawa to assist in carrying it out. [19] The official, J. S. Dennis, Surveyor-General, arrived on December 17, with authority to proceed with the drawing of allotments and by the end of the month he was busy making the rounds of the five parishes in which townships had not been selected. [20]

With the release of the news that the drawing would soon begin, a wave of speculative buying of half-breed claims spread quickly over the province. The vendors were half-breed heads of families and the view was expressed in the Legislative Assembly and in the newspapers that sales of claims by such persons would not be recognized because they were repugnant to the terms of Section 31 of the Manitoba Act. [21] In March, 1873, the Manitoba Legislature passed an Act declaring that no agreement, either for or without a money consideration, with regard to the transfer of title to half-breed lands, made before the issue of Patents for the same, was valid, The purchase price if paid prior to the passing of the Act was recoverable but any monies paid subsequent to its enactment and prior to the issue of patents were not recoverable. [22] The protection this legislation provided for the halfbreed against speculation was not asked for nor was it graciously accepted. [23]

In the same month, Mr. Cunningham, federal member for Marquette, raised (in the House of Commons) the issue of eligible participants and at first the Government affirmed its stand that all half-breeds were entitled to the grant. [24] The question must have led to some statute reading, however, because ten days later when Cunningham presented resolutions defining half-breed children as the only eligible claimants to the grant the government accepted them. [25] On April 3, an Order in Council amended the existing regulations by declaring that the children of half-breed heads of families alone were entitled to share in the 1,400,000 acres, [26] and on May 3, the new interpretation of Section 31 of the Manitoba Act received statutory confirmation. [27] Allotments of 140 acres had been made during March, but distribution was halted because of the new regulations. [28] The Surveyor-General, in his last report to the Secretary of State, (June 30), was able to say that plans for a new distribution on the basis of 190 acres per allotment were underway. [29]

The Department of the Interior began its duties on July 1, 1873 and to it fell the complicated problem of the half-breed grant. Administration of the grant regulations had followed a path, tortuous enough, up to this time but the Department soon was apprised of new factors which demanded consideration and which were to put new crooks in the path. Claims under Section 32 of the Manitoba Act still were in the process of being defined, and of these, the rights of cutting hay and of common, particularly, threatened to overlay claims under the halfbreed grant. The right of original settlers, other than half-breeds, to be treated in a manner similar to that accorded the half-breeds was recognized and required settlement. [30] In addition, a peculiar group of claims known as "staked" claims had intruded upon the scene. [31] The latter were not to become a serious problem for another year or more but their existence was a source of concern.

The problem of the hay privilege had taken on a serious aspect shortly after the original selection of the half-breed reservations in 1872. The reservations, in many cases, abutted on the rear lines of the Settlement Belt, [32] and protests arose on every side from the Belt holders who feared that their rights in the outer two miles were being denied them. [33] Early in 1873, a Commission was appointed to investigate these rights and it reported in March that certain rights in the outer two miles did exist, and that the Belt holders would have to be compensated in some fashion for loss of them. [34] Commutation in unclaimed crown lands was first recommended, but in September, 1873, the Government recognized the Belt holders' right to compensation in the outer two miles and ordered that this area be withdrawn from the half-breed reserves; the reserves to be extended backward in proportion to the area so withdrawn. [35] A knotty and contentious issue thus was disposed of.

The plans for a reallotment of the half-breed reserves were completed during the summer of 1873, by which the individual grants were increased to 190 acres. Work on the plans apparently progressed very quietly because a member of the press felt the need to bemoan the dearth of news relating to any aspect of the half-breed grant. "That confounded Pacific Scandal," he said, "seems to have absorbed the energies of all the Ministers in all the departments to the utter exclusion of public business." [36] The public business of distributing the half-breed grant began in November but was not completed; the unsavoury episode of the newsman's wail resulted in a change of government at Ottawa and the new Minister of the Interior, David Laird, ordered the procedure to stop. Henceforth haste was to be made slowly and the indeterminate features of the grant were to be exposed before an advance was ordered.

Lieutenant-Governor Morris, meanwhile, was engaged in correspondence with the Department of the Interior with regard to the establishment of a system whereby claims under the half-breed grant might be investigated. His recommendations embodied features which had been used to advantage in Upper Canada when the problem of United Empire Loyalist claims to land was before the Government of that province. The system had been to record a particular holding in the land office register and by this entry the land was vested in the holder subject to such proof of right as was later established. All that would be required to initiate a like system in Manitoba, he said, would be to publish a list for each of the several parishes describing the allotments made and designating as allottees those whose names appeared on the parish census rolls. Notice might then be given that all claimants to half-breed land were to apply for their patents and that proof of right would be received at the land office. Such a system, he felt, would give at once, a marketable value to the holdings and thus protect the half-breeds who, at the time, were receiving paltry sums for their rights to indeterminate lots. [37]

The Surveyor-General opposed this system on the ground that the examination of claims would place too heavy a burden on the staff of the land office. He saw no need to include in any parish lists a description of the lands allotted to each individual and he recommended that a commission be appointed for the special purpose of examining half-breed claims. [38] A solution of the problem by any means would have been welcomed in Manitoba but the Department set the issue aside for future reference and turned to the question of what should be done for the half-breed heads of families. To follow the Department into this problem it will be necessary to digress briefly from the main course of the half-breed grant administration.

In 1873, the former government, in answer to representations from the Legislature of Manitoba, [39] had provided by statute a grant of 49,000 acres of land to be divided among the original Selkirk settlers or the children, not being half-breeds, of the same, then resident in Manitoba. [40]

These people, it was felt, were entitled to the same consideration as that being extended to the half-breeds in the Province and the individual allotments were to be of the same size as that of the half-breeds, i.e. 140 acres. The legislation, however, was prevented by subsequent events from establishing the principle of equal treatment as between Selkirk settler and half-breed.

The half-breed heads of families had been divested of their right to share in the half-breed grant before the legislation was passed, and furthermore, the reduction in the number of claimants to the half-breed grant had increased automatically the area of the individual allotments above the 140 acre basis. Nor was that all. The grant of 49,000 acres was to provide 140 acres each for an estimated 350 Selkirk settlers whereas an accurate census showed that there were some 530 such claimants. This meant that the allotments would measure just over 92 acres each. Notwithstanding the trouble it caused, the comedy of errors had reached its climax in this situation.

A bill introduced by David Laird, on May 1, 1874, met the situation adequately and when it was passed in the same month it embodied a modified but nonetheless satisfactory principle of equal treatment. The legislation provided for a grant of 160 acres of land or of scrip for 160 dollars to the half-breed heads of families, fathers, mothers, or both as the case might be. By the Act, also, a grant of scrip for 160 dollars was made to all original white settlers, whether sponsored by Lord Selkirk or otherwise, who came to the Red River Settlement between the years 1813 and 1835, both inclusive, or to the children of such settlers, not being half-breeds. [41] The change in the provisions relating to original settlers was introduced to satisfy the wishes expressed by such settlers through a joint address of the Manitoba Legislature. [42]

In the early autumn of 1874, David Laird established the desirable and much appreciated precedent of ministerial visits to the North West. Much of the criticism of the administration of western affairs was well founded in the claim that Ottawa's officialdom acted upon a knowledge of the West derived only from secondary sources. The earnest attention which the Minister gave to affairs under the jurisdiction of his Department during his visit received grateful response from the inhabitants. The visit afforded the opportunity for all to air their views and grievances. "Since his arrival in the Province he has with studious impartiality given audience to all sorts and conditions of men," the Nor'Wester reported. [43] Apart from the salutary effect of the personal interviews, it is difficult to assess the benefits derived from the Minister's tour of the West. It did not produce a noticeable quickening of pace in the administration of land matters under the Manitoba Act, but under Laird and his successor, David Mills, who followed the precedent, the Department of the Interior avoided repeating the gross errors in judgment which had characterized the early administration of these affairs.

To return to the administration of the half-breed grant; the problem of how best to examine the half-breed claims to land, temporarily shelved early in 1874, was brought down again for consideration in 1875. Whether the experience gained from seeing the Manitoba Land Office in operation enabled the Minister to come to a decision in the matter is a moot question, but his memorandum to the Privy Council in April followed almost verbatim that of the Surveyor-General written during the debate with Lieutenant-Governor Morris. The Minister recommended the appointment of a Commission for the special purpose of examining half-breed claims and outlined the terms of reference within which the commission should act. [44] His recommendations were approved by an Order in Council on April 26, 1875, [45] and on May 5, a further Order authorized J. M. Machar, of Kingston, and Matthew Ryan, of Montreal, to act as Commissioners. The latter Order instructed the Commissioners to examine also, the claims of half-breed heads of families to land or scrip and of original settlers to scrip under the Act of May, 1874. [46]

Manitoba welcomed the Commission and wished it God-speed, while mildly regretting that the Commissioners should have been selected from outside of the Province. [47] The Commissioners worked quickly and carefully and in four months time had completed their tasks. Some 9300 claims were examined in this short period to the complete satisfaction of the half-breeds and other claimants. [48] The results of this examination provided, for the first time, a proper basis for a final settlement of the half-breed grant under the Manitoba Act.

The "staked" claims problem also came up for review in 1875. The Government first heard of these claims early in 1873, when the Surveyor-General, J. S. Dennis, wrote to Ottawa that he had been waited on by a large delegation of half-breeds who claimed that they had a right to certain lands which they had marked off on the Rat, Salle, and Seine Rivers. [49] The generally well sheltered banks of these rivers afforded a good wintering ground for stock owned by the halfbreeds and had been used for this purpose since about 1862. When these people learned of the Government's intention to allow preemption rights to land peaceably held at the time of its transfer to Canada, they lost no time in "staking" claims to it. In most cases there was no attempt to improve the land; a few posts to mark the limits along the river banks, piled up poles to represent the walls of a house, tree blazes, or a small ploughed patch were among the usual bases for claims by right of peaceable possession.

The question of "Staked" claims was referred to the Minister of Justice for a decision as to their legality under the Manitoba Act, and in July 1874, he informed the Minister of the Interior that such claims could not be recognized. The half-breeds would not be put off, however, by legal arguments which they could not or did not choose to understand and so the Minister of the Interior was forced to appeal again to the Department of Justice. In March, 1875, he was advised not to have any legislation with regard to "staked" claims but to examine and deal with each case upon its own merits. The advice was accepted and although the recognition of a new class of claims complicated the problem of the half-breed grant, it also exposed the last of the undetermined factors which previously had delayed a settlement. [50]

From 1876, the history of the settlement of the half-breed grant is one of progress. Remedial legislation had removed the inconsistencies of previous enactments and investigations had revealed the obstacles yet to be overcome. The Department of the Interior had committed iself to the creation of an extension of the land-lock, already created by the halfbreed reserves, under the provision of the Act which granted land or scrip to the half-breed heads of families. Action in this direction was in no way desirable, and when the investigations of the Half-Breed Grant Commission disclosed that an issue of scrip would be satisfactory to the claimants, an Order in Council was passed in March, 1876, which provided for the settlement of all such claims by this means. As a protection to the recipients of scrip it was provided, also, that no assignment or a right to scrip would be recognized by the Department. [51]

In June, 1876, the Department moved to do justice to those halfbreeds who had left the Province to reside in the North-West Territories previous to the sittings of the Half-Breed Grant Commission. Matthew Ryan, lately appointed a Stipendiary Magistrate for the Territories, was authorized to continue to act as a commissioner and to take the evidence of such claimants as might come before him; such commission to continue for two years. [52]

The stage was now set for the final act and by an order in Council of September 7, 1876, the Department issued regulations for the distribution of the half-breed grant. The Half-Breed Grant Commission had reported 5088 persons as entitled, but the rights of an additional 226 persons had been verified subsequent to the commission sittings. To provide for future claims which might be verified the total number of claimants was placed at 5883 which, when divided into the grant area of 1,400,000 acres, allowed 240 acres for each claimant. The 240 acre allotment, in contrast to the previous allotments of 140 and 190 acres, was easy of description under the survey subdivision system and therefore presented no obstacle to distribution. All previous allotments were cancelled and Lieutenant-Governor Morris was requested to proceed with the new. [53]

The drawings and allotment of the lands began on October 30, 1876, under Morris' supervision. In a letter to Ottawa reporting the beginning of the drawing, the Lieutenant-Governor reopened the discussion as to the advisability of publishing lists containing a description of the allotment and the names of the allottees as soon as possible after the distribution had been approved by the Privy Council, and recommended again that the lands so allotted should vest in the allottees pending the issue of patents. [54] The Department of the Interior, in this instance, either viewed the suggestions with favour, or had already decided upon some such practice, because lists began to issue early in 1877, which described the allotments, designated the allottees, and stated that the claims of such allottees had been approved. [55]

All but seven of the parish allotments were completed in 1877 under Lieutenant-Governor Morris' supervision and 1115 patents were issued in that year. [56] Joseph Cauchon succeeded Morris as Lieutenant-Governor of Manitoba on December 2, 1877, and although he was asked to proceed at once with the allotments in the remaining parishes, he declined to do so because of representations that were made to him concerning disputed claims which existed in some of the parishes. [57] The Department of the Interior was forced to investigate these claims and as a result allotments in two parishes only were made during 1878. [58] In that year, however, the Minister in order to facilitate the final disposal of the halfbreed grant received authority to issue patents to all claimants irrespective of age or sex. [59] Allotments were made during 1879 and the early months of 1880 in the five remaining parishes. Patent issue was practically completed in 1880, [60] and it may be said that in that year the half-breed land grant in Manitoba was settled.

The "Hay Privilege"

Under Subsection 5 of Section 32 of the Manitoba Act, the Lieutenant-Governor was authorized, under regulations to be made from time to time by the Governor-General-in-Council, to make all such provisions for the ascertaining and adjusting, on fair and equitable terms, the rights of common and the rights of cutting hay enjoyed by the settlers in the Province and for the commutation of the same by grants of land from the crown. [61] By inclusion of this provision in the Manitoba Act, the Dominion Government confirmed these customary rights which had been recognized by the Laws of Assiniboia, passed by the Council of Assiniboia; the sole governmental authority in the Red River Settlement. [62]

The inhabitants of the Settlement Belt [63] in twelve of the Red River parishes, enjoyed the exclusive right to cut hay on the outer two miles immediately in the rear of their river lots, and this outer belt itself became known as the "hay privilege". [64] In addition, the right was shared by many settlers in common in such areas as the Point Douglas and St. Boniface Commons. Such hay cutting was restricted by law to a particular period of the year and specific penalties were imposed for infractions of the statutory regulations. The right was simply an easement but one of a peculiar nature, in that, it extended over all of the land on which it was exercised and precluded occupation of the land for any other purpose. In effect, the outer two miles had become the property of the owner of the inner two miles. In the discussion which follows it will be apparent that delay in recognizing this aspect of the situation was the source of administrative difficulties for the government and of grievances for the claimants.

When the Manitoba Act was being debated in the House of Commons, Sir John A. Macdonald intimated that the cutting of hay according to customary practices would be allowed to continue until such time as the progress of settlement made it impracticable. [65] In consequence, the Dominion Government took no immediate action to formulate a policy with regard to commutation. Other aspects of the land problem in Manitoba did receive early attention, however, and features of their administration gave rise to feelings among those occupying the Settlement Belt that their rights in the "hay privilege" were being abrogated.

By late 1872, the settlers had become exceedingly restive. In some of the parishes, newcomers to the Province had made entries for homesteads in the outer two miles; the Subdivision Surveys were being tied in with the rear lines of the Settlement Belt; and some of the half-breed reserves were found to abut on these rear lines. Early in the year the Legislature of Manitoba, in a joint address to the Governor-General, had confirmed the "immemorial" usage of rights of hay and common and had claimed their complete fulfilment; [66] a gesture on behalf of the claimants which was not answered for a year. In November, Alexander Morris wrote to Ottawa, to ask that notice be given of Parliament's intention with respect to the hay privilege.. He said that inaction in this regard was among the more fruitful sources of disquiet in Manitoba and that it was being used by political agitators to stir up movements which would be injurious to the best interests of the Province. [67]

The agitation, in so far is the "hay privilege" was concerned, took the relatively innocent form of parish meetings where resolutions were passed and petitions were drawn up praying for an early settlement of the right associated with the outer two miles. [68] The Lieutenant Governor received these appeals sympathetically, but nothing short of positive action by the Dominion Government would satisfy the petitioners. In January, 1873, both Morris and the Surveyor-General, J. S. Dennis, telegraphed Ottawa for such action and in reply the Government authorized Morris to appoint a Board to enquire into and to report upon the nature and value of the rights and to suggest a means of carrying out commutation. [69]

The Board, consisting of Judges McKeagney and Betournay and the Surveyor-General began its work early in February and submitted its report on March 6, 1873. The report confirmed the existence of the rights of hay and common and recommended that a Commission should be appointed to investigate the claims individually and to award compensation in full of such claims according to the merits of each case. It was recommended also that commutation of rights should be in scrip redeemable in unclaimed Crown lands outside of the outer two miles because that belt already formed a part of the half-breed reserves. [70]

The Board well knew that in presenting the recommendation, last noted, it was acting in opposition to the expressed wishes of the occupants of the Settlement Belt. The earliest protests had been directed against the occupation of the outer two miles by homesteaders and the location of the half-breed reserves in this area. The numerous parish petitions regarding rights in the outer two miles all had represented that compensation was sought in that belt, and the leaders in many of the same parishes had been conferred with during the Board's investigations. The action was taken because Dennis had received notice from the Secretary of State that the Government was not prepared to recognize any claims in the outer two miles set up through rights of hay or common. [71] In this instance, the Government found it expedient to stay strictly within the terms of the Manitoba Act. The Board's report, however, was confidential, and so the recommendation did not increase the local agitation which, in the absence of any tangible result of the Board's activities, continued unabated.

Lieutenant-Governor Morris was aware of the difficulties which would arise if the settlers claims were recognized, but nevertheless, he supported them. In pressing their case, he suggested the withdrawal from the outer two miles of the half-breed reserves as a starting point of a plan the further details of which the proposed Commission could work out. The Surveyor-General, a reluctant party to the denial of the settler's claims, acknowledged the feasibility of such a course and the Minister of the Interior was moved to recommend a plan of settlement to the Privy Council.

On September 6, 1873, an Order-in-Council authorized the appointment of John Bain and Joseph Dubuc as Commissioners to investigate individual claims and to award fair and equitable compensation. The outer two miles was withdrawn from the half-breed reserves and the Commissioners were instructed to award compensation for claims immediately in the rear of the settled lots. The lands so given were not to extend beyond the outer two mile limit nor to be wider in extent than the front lot occupied by the claimant. Scrip was to be issued at the rate of one dollar an acre if the claimants so desired. [72] A slow start and an adherence to legality had increased the size of the problem the Commissioners would be asked to resolve but something of the nature of the easement was now recognized and progress would be impeded only by the quality and quantity of the complicating factors.

The commissions were issued to Messrs. Bain and Dubuc on October 30, 1873, and by February 23, 1874, they had examined some 200 claims in the parishes of St. Paul and St. Charles. The rights of hay and common had been fully and generally exercised in these parishes and in the course of their investigations the Commissioners learned much of the history of these rights. What they learned led them to recommend that the regulations under which they were acting should be amended so that those who for any reason could not receive commutation in full of their rights in the outer two miles, should receive scrip for one half as much more land as there was in the part of the outer belt taken up. In the event that the whole of the outer belt was taken up the claimant should be allowed scrip for half as much more land as there would be in a piece of land the width of the front lot and two miles long. [73] The Commissioners had learned how valuable the contiguous lands were to the front lot holders and they felt that, in all fairness, those who were deprived of compensation in these lands should receive a liberal share in other lands; hence the extra half.

Lieutenant-Governor Morris agreed with the suggested amendment and asked the Commissioners to suspend further investigations until the Privy Council had been given an opportunity to consider the report. The Department of the Interior was not unprepared to accept the suggested revisions to the "hay privilege" regulations. It will have been noted that the Commission had concerned itself only with the rights of hay and common within the outer two miles. The Department, meanwhile, had been made aware of and had been enquiring into claims to similar rights with respect to lands outside of the four mile limit and so it was recognized that the existing regulations were not sufficiently comprehensive in scope and method.

That it should have taken the Government a considerable length of time to comprehend the heterogeneous character of the rights of hay and common is understandable. The way in which the rights were exercised varied even among those parishes where they were recognized by law. In the other parishes the number of variations was still greater, and throughout the whole of the Red River Settlement there were customary practices and privileges associated with the unoccupied prairies which were never recognized or regulated. The Government's administrative policies with regard to the Manitoba Act and the Dominion Lands Act interfered with the exercise of these rights and for the first time, perhaps they were defined in positive terms. [74]

The Surveyor-General had prepared a memorandum dealing with those claims which hitherto had not been considered as having a place under the rights of hay and common. Some of the claims came from parties who lived in parishes where the rights were recognized by law, but who had exercised their rights beyond the outer two miles in the open plains because the land immediately in the rear of their river lots was not suitable hay land. Other claimants lived in parishes where the rights were not recognized by law, but where the inhabitants had been accustomed to enjoy rights of common on the open plains in the shape of pasturage for their cattle and horses. Dennis urged that it would be unjust not to extend a fair consideration to these people because the coming of settlement had disrupted their method of farming; a method which the present generation was not likely to change.

The memorandum was referred to the Minister of Justice for an opinion as to the validity of the rights with which it was concerned. In reply, the Minister stated, that these rights had been given recognition, however indirect, by the Laws of Assiniboia, the Manitoba Act and the Order-in-Council of September 6, 1873, and so it was no more than proper that a means of commutation should be devised. [75]

The Department of the Interior however did not end its enquiry at this point. The Minister asked Lieutenant-Governor Morris for his views on the rights of hay and common outside of the four mile limit and in March, 1874, Morris submitted a very full report on the subject, and recommended that claims in this regard should be investigated by the Commission under new regulatory provisions. He also brought up the question of claims to fenced-in parks which existed within the outer two miles and suggested that the Land Agent should be authorized to adjust such claims on a just and equitable basis, despite the fact that the fencing of these parcels of land had been done without authority of any kind. The settling of claims in the Point Douglas and St. Boniface commons, he felt, should be entrusted to a special Commission composed of three judges of the Queen's Bench of Manitoba. [76]

Morris' report filled out the information the Department felt it needed before issuing settlement regulations and in April, 1874, two Orders-in-Council were passed which made provision for the commutation of all rights of hay and common which were known to exist; and for the settlement of the several classes of claims to land in the outer two miles. The first Order, passed on April 3, authorized the Dominion Lands Agent in Winnipeg to approve and confirm the claims in the outer two miles under the rights of homestead and pre-emption, provided that entry had been made prior to the selection of the halfbreed reserves and that proof of actual settlement and improvement was furnished within two months of the time of personal notification of its being required. The claims to fenced-in parks in the outer two miles, if so improved previous to the transfer, were to be specially surveyed, and the claims settled by free grants. A bona fide improvement of ten years was to entitle the owner to a free grant plus a tract, at the discretion of the Minister of the Interior, not to exceed twenty acres and in that proportion for a greater or lesser improvement. A road allowance of at least fifty links was to be reserved along some convenient boundary to afford a means of access to these grants. [77] The Order by providing for the settlement of such claims in the "hay privilege" disposed of the known obstacles to settlement of the rights of hay and common in this belt. It will be remembered that the "hay privilege" had been withdrawn from the half-breed reserves in September, 1873. In October, the Dominion Lands Agent Donald Codd, had informed Morris that the existence of Hudson's Bay Company sections in the belt was also an obstacle to settlement of the hay claims. Morris informed Ottawa and received an immediate reply that Donald Smith agreed to accept other lands in lieu of those in "hay privilege." [78]

The second Order, passed on April 17, 1874, provided that, in those parishes where the rights were recognized, if the outer two miles was not taken up, the owners of river lots should receive grants of land immediately in the rear of such lots; the grants to be in full commutation of all rights of common and of hay cutting. In cases where for any reason full commutation could not be given in the outer two miles, scrip for one half as much more land as was not available in this belt was to be issued. Claimants in parishes where the rights had not been recognized by the Laws of Assiniboia were to receive commutation in full of such rights by an issue of scrip of one dollar for each acre of land to which they could prove title under any of the first 4 subsections of Section 32 of the Manitoba Act. With regard to the claims to Point Douglas and St. Boniface, a special Commission of three judges of the Court of Queen's Bench of Manitoba was to be appointed to investigate such claims. [79]

Patents for the land granted as commutation for the rights of hay and common began to issue in 1877, and were completed by 1885; in all 869 such patents were issued. [80] Scrip in commutation of hay rights outside the old parishes began to issue earlier. [81] The initial delay with regard to patent issue arose out of the need to settle the claims to land in the "hay privilege" in respect of park lands, homesteads and Hudson's Bay Company sections. [82] The later delay may be attributed to the Departmental practice of having but one poorly supervised clerk at work on preparing patents under the Manitoba Act. In any event, delay was practically the only source of grievance after the coming into operation of the Orders-in-Council of April, 1874; a major aspect of the squatter problem had been settled.

The Department of the Interior now turned to the allied problem of the Point Douglas and St. Boniface Commons. The Department did not find it expedient to issue the Commissions for the investigation of claims in these areas. Instead the evidence on which the claims were based was consolidated and reported to the Privy Council in May, 1877, by the Minister and recommendations for the settlement of the claims were included in the report. [83]

The basis for the claims to the Point Douglas Common was more extensive than that in respect of the ordinary rights of hay and common. It was alleged that the rights, recognized and enjoyed, were of a superior nature because, in addition to the customary rights excclusive with the Point holders, the land had been conveyed to the settlers by Lord Selkirk at the time that their front lots had been granted to them. [84] The claimants also alleged that they had rights under the "undisturbed occupancy" clause of the Act of 1875. [85]

The Minister, however, was not prepared to recognize the superior nature of the claims. [86] There was no evidence, he said, in support of right by reason of a special grant from Lord Selkirk and right under the Act of 1875, did not apply in these cases. The claim that the Common was for the exclusive use of the Point holders also lacked support in fact. In short, he found the demand for the whole of the Common in commutation to be unreasonable, and considered that the Point holders were entitled to no more or no less satisfaction than the claimants residing in the Settlement Belt. Accordingly, he recommended that the commutation should be by grants on an acre for acre basis in that part of the Common closest to the Red River; that part of the Common being regarded as the most valuable. [87] All responsibility for the division of the grant was to rest with the claimants. Patents for such land in commutation were to issue in trust for the benefit of the several owners of the Point lots. [88] The patents, however, were not to issue to the trustees until written consent had been obtained by the Dominion Lands Office from the tenants who had bought land in the Common.

With regard to the St. Boniface Common, a somewhat different method of settling claims was recommended. The Common consisted of 118 acres but the claimants held river lots totalling 1141 acres. Obviously an acre for acre settlement was impossible. The claimants, of who there were twenty, had agreed to accept a division of the Common on the basis of an equal portion to each; the patent to issue in trust to Archbishop Tache. The Minister proposed that such a course should be followed.

On May 10, 1877, an Order in Council authorized the settlement of these claims in accordance with the Minister's recommendations. [89] The terms of the Order however, were not accepted by several of the Point Douglas claimants, and since the claims were presented by the trust, it was impossible to proceed with the settlement of any of the claims. [90] In June, 1880, the Minister of the Interior informed the Privy Council that a large number of claimants were ready to accept the terms offered. The claimants, however, had asked that the lots which they had sold in good faith prior to the first investigations should form no part of the land in commutation but that patents should issue directly to the persons owning such lots; any payments outstanding on them to be made to the Department of the Interior. This was an offer to compromise and the Government was quite willing to make concessions in order that the troublesome business should be finished. The Minister accepted the proposal as reasonable and recommended a new method of settlement. By this method the commutation area would be surveyed and projected into city lots and streets and then the lots would be drawn for by a system of lottery. Each claimant was to receive lots in a number sufficient to make up a parcel appurtenant to his original Point lot. Effect was given to the method by an Order-in-Council of June 29, 1880. [91]

Almost three years elapsed before the survey and projection of the commutation area into city lots was completed. On April 2, 1883, Mr. John Hall, Assistant Secretary of the Department of the Interior made the draws for the city lots in the presence of the claimants. The schedules of claimants and of the allotments for each front lot which were prepared from the results of the drawing were approved by an Order in Council on June 6, 1883, and the Minister was authorized to issue the patents. [92] Eight hundred and eighty seven city lots were distributed among 25 claimants; the greatest number of lots received being 115, the smallest number being 8. The remaining portion of the Point Douglas Common was retained by the Dominion and was subsequently disposed of by grant or by sale.

References

l. Statutes (CAN), 1870, 33 Vict., Chap. 3.

2. Department of Interior (D.I.), Orders-in-Council, No. 1, p. 9, clause 14. It should be noted here that the transfer had not been completed at this time, but Canada had accepted the terms in principle.

3. Debates (HC), 1870, p. 1355.

4. D.I., No. 1, p. 26; also C.S.P., 1871, No. 20, p. 7.

5. C.S.P., No. 20, p. 15, clause 9 of instructions.

6. Ibid, p. 74, Letter, Archibald to Secretary of State for the Provinces, 13 October 1870.

7. Ibid, p. 78, enumerator's form.

8. Ibid, pp. 92, 94, 95, abstracts.

9. D.I., No. 1, p. 69, Order-in-Council, 25 April, 1871.

10. The first regulations regarding the half-breed grant were made effective by an Order-in-Council in March, 1871, but the provisions of the Order were criticized in Parliament and so were revised and re-issued in the April Order. The Honourable William McDougall presented several resolutions with regard to the March regulations among which was the following: "That the proposed distribution of the 1,400,000 acres by Act of Parliament ‘towards the extinguishment of the Indian Title to the lands in the Province' of Manitoba among all the half-breed residents instead of limiting the said grant to and dividing it ‘among the children of the half-breed heads of families residing in the Province at the time of the transfer to Canada' is a violation of the express conditions of the appropriation and contrary to law." The resolution is clear and precise in indicating that the Act was being misinterpreted. The only answer from the Government side, however, came from Alexander Morris who said, "As to the allotment of the land among the half-breeds, the hon. member had objected to the interpretation put upon the Act in that respect by the Order in Council, but the terms of the Act fully justified the Order in Council, and it was certainly desirable that the term ‘children of the half-breeds' should include all children whether of mature age or not." The answer indicates a certain intention on the part of the Government to extend the application of the terms but does not indicate the intention to extend the grant to all half-breeds. See; Debates (HC), 1871, p. 959-962.

33. The Settlement Belt was a two mile strip of land on either side of the Red and Assiniboine Rivers to which the Indian title had been extinguished by a Treaty between Lord Selkirk and the Salteaux and Ojibway Indians in 1817. River lots in this belt were of narrow frontage (average 6 chains) but which extended backwards of the full two miles. Holders of these river lots had the recognized right, in twelve of the parishes, of cutting hay in a two mile area immediately in rear of their lots: hence the outer two miles. See section on "Hay Privilege".

59. D.I., No. 2, p. 733, Order-in-Council, 4 July, 1878; this Order rescinded Sections 6 and 7 of the Order-in-Council of April 25, 1871, which provided that patents should issue only to claimants 18 years or over.

63. The Hudson's Bay Co. had a plenum dominum to the land two miles back from the Red and Assiniboine Rivers. This area, except at the forts, was the only land to which the Indian had been extinguished and, in consequence, the Company granted no lots outside of this area. Broadly speaking then, the Settlement Belt was that area along both rivers which was open for settlement but, in fact, the term usually applies to that part of the area which was actually taken up or settled. See Morris, Treaties, Appendix, p. 299, for text of Indian Treaty by which the title was extinguished.

64. The term "hay privilege" as it will be used in this section means the outer two miles. Martin, Tenures, p. 90. The term was used in a different sense, however, referring to the rights enjoyed in the outer two miles. See: PA.M. (L.G.), Box 14, "Report of Commission on Hay and Common Rights", 23 February, 1874. In this report "the ‘hay privilege' was, in effect, the exclusive right during a certain period in each year that the owner or occupant of each front lot had of cutting the hay on the two miles immediately in rear of his lot, after the expiration of which period the hay left on the outer two miles in order of the settlement lots was common to all."

74. Ibid, The Report mentions the existence of positive laws with regard to the rights of hay and common; laws which were passed by the Council of Assiniboia about 1835. The writer was unable to find this legislation, but for regulations regarding hay and the four mile limit, see; Oliver, North-West, Vol. 1, p. 291, 296, 298.

77. D.I., No. 1, p. 55, Order-in-Council, 3 April, 1873. It is interesting to note that in the Parish of Kildonan, a parish from which protests against Government policy with regard to half-breed reserves and homestead entries encroaching upon the "hay privilege," six of sixteen applications for homestead patents were filed by Kildonan settlers themselves. It would seem that these settlers were the cause of much of the discontent which had its basis in the conflict between the several land administrative policies. Donald Gunn, a parish leader, and Senator John Sutherland were among these Kildonan homestead claimants. See: P.A.M. (L.G.). Box 14, Returns of Locations within Kildonan Hay Claims; also: P.A.M., Donald Gunn papers, letters, Schultz to Gunn, re. plans of attack on Government policy.

79. D.I., No. 2, p. 71, Order-in-Council, 17 April, 1874. The order in a marginal note lists the parishes in which the "hay privilege" rights were recognized by the Laws of Assiniboia. Morris, in acknowledging the receipt of the order, recommended that the services of the Commissioners; P.A.M. (L.G.), Letter Book H, Morris to Minister of the Interior, 11 May, 1874. Laird withdrew the commissions. Ibid, Box 14, Laird to Morris, 22 May, 1874.

80. C.S.P., 1886, No. 8, p. xvii.

81. Ibid, 1877, No. 11, Part III, p. 9.

82. Ibid, 1876, No. 9, Part 3, p. 8.

83. D.I., No. 2, p. 602-4.

84. Statutes (Can), 1875, 38 Vict., Chap. 52, Section 1.

85. This claim was made by only two of the Point holders but it had to be investigated and answered.

86. The arguments against such recognition are given quite fully in the memorandum. Note 23 above.

87. The Common contained 667.2 acres of which 226.07 acres were occupied.

88. Supreme Court of Canada, Fonseca and Schultz vs Her Majesty's Attorney-General for Canada, Respondent's Factum, p. 7. "In 1872, the number of the point-holders agreed to make a concerted effort to obtain a patent for the whole of the common, and in the meantime to proceed more regularly with the sale of the lots into which they had in 1870, divided a part of the common. They accordingly transferred their interests to trustees." See also; C.S.P., 1873, No. 45, p. 8-11, for first action by the trustees and government's reaction.

89. D.I., No. 2, p. 601, Order-in-Council, 10 May, 1877.

90. There was, however, one notable exception. W. G. Fonseca, one of the trustees, bolted from that group in July, 1877, and claimed land on the ground that he had been its sole occupant. He pressed the claim alone until November, 1879, when he sold a half interest in it to John Schultz, M.P., who agreed to use his influence at Ottawa to get the desired patent. Three weeks later a patent issued to Fonseca for 17 acres in the Common. The patent's validity was challenged by other Point holders and the case finally reached the Supreme Court in 1888. See; Fonseca and Schultz vs Attorney-General.